Marriage in Early Ireland

Donnchadh Ó Corráin

Source: Marriage in Ireland, ed. A. Cosgrove, Dublin 1985 5-24.

There was a controversy amongst early Irish lawyers (about AD 700)
as to whether monogamy or polygamy was the more proper and one
clerical lawyer solved the problem by reference to the Old Testament:
if the chosen of God (here he may be referring to the chosen people
as a whole or merely to the Patriarchs, and the glossators of the
text refer explicitly to Solomon, David and Jacob) lived in polygamy
‘it is not more difficult to condemn it than to praise it’.[1]

In the longest established of the western churches outside the
Roman Empire and in a society in which christian Latin culture
flourished in a remarkable way,[2] the norms of christian marriage
were not, paradoxically, accepted in society generally (we shall see
later that there were exceptions) throughout the middle ages. It is
not unusual, of course, that the norms should not be observed: they
were, after all, a counsel of perfection and elsewhere in christian
Europe the laity were far from obeying the church’s rules[3]—but it
is surely interesting that the christian Irish lawyers, most of whom
were clerics, should appear to consider marriage within a theoretical
framework different from that of the contemporary church and should
frame their practical rulings accordingly. However, one should not
lay too much stress on the differences between marriage in early
Irish and in early continental societies: the similarities are, in
practice, much more significant than the differences, and if Ireland
was remarkable it was in the persistence of early medieval patterns
of marital behaviour into the later middle ages and beyond.

The principal sources for the history of marriage in early Ireland
are the law tracts in Irish and Latin, all the most important of
which were probably written up within half a century of AD 700.[4] In
some respects, the materials are rich—in many instances they provide
us with an account of what was done rather than what ought to be
done—but they are difficult to interpret. In other respects, they are
very limited, for we have no marriage charters and no records of
marital cases before the Anglo-Norman period. Records of church
legislation about marriage dry up in the eighth century and do not
begin again until the twelfth (when the great reform, or rather
revolution, in church and society was undertaken). Much of what is
said here must, therefore, be tentative.

Lawyers writing in Irish divide first and principal marriages into
three categories:

(1) lánamnas comthinchuir, ‘marriage of common contribution’,
marriage in which, apparently, both parties contribute equally to the
common pool of marital property;

(2) lánamnas for ferthinchur, ‘marriage on man-contribution’,
an arrangement by which the bulk of the marriage goods are
contributed by the man; and

(3) lánamnas for bantinchur, ‘marriage on woman contribution’,
marriage to which the woman brings the preponderance of the property.

All three main types of marriage are considered by the lawyers as
special contractual relationships between the spouses in regard to
property, which are similar in some important respects to that of a
lord and his vassal, a father and his daughter, a student and his
teacher, an abbot and his lay-tenant—other pairs that hold property
in common and, on occasion at least, run a common household. What
each of the pair may have given the other, consumed, or spent in good
faith cannot give rise to a legal action; what has been taken without
permission must be replaced if a complaint is made about it; and
legal penalties are involved only when the complaint (and the
appropriate legal procedure which must follow it) is ignored or when
property is removed by theft or by violence.

The threefold categorisation, which refers to main marriages only,
is not quite satisfactory because it runs together institutions which
were really separate, but it does bring out that about AD 700, when
the principal tract on marriage was written. Lánamnas comthinchuir,
which the tract places first and treats in greatest detail, was
regarded as the most important or perhaps the normal type of
principal marriage amongst commoners of property (and aristocrats)
and had been for some considerable time.[5]

It was a dignified state for the wife in question: if it was a
marriage ‘with land and stock and household equipment and if the wife
was of the same class and status as her husband, she was known as a
bé cuitchernsa, literally ‘a woman of joint dominion, a woman of
equal lordship’—a term which seems to be rendered domina in the canon
law tracts. Neither of the spouses could make a valid contract at law
without the consent of the other. The lawyers list exceptions to this
rule but, apart from the specification that these must be dealings
which advance their common economy, they are mere run-of the-mill
matters in the ordinary business of farming—agreements for
co-operative ploughing with kinsmen, hiring land (presumably for
grazing), getting together the food and drink to meet the duty of
entertaining one’s lord or to celebrate church feasts, acquiring
necessary tools or equipment and the like—and one would expect either
spouse to make such arrangements without necessarily consulting the
other.

Not so the more important contracts, such as those which involve
the alienation of property. In Irish law there is really no conjugal
fund or common property in marriage: each partner retains ultimate
private ownership of what he/she brought into the marriage, though it
may be pooled for the purpose of running a common household. (And
each may have personal property besides.) This is particularly
stressed in the general provision that every dealing in property must
be carried out conscientiously and without neglect of the interests
of the other partner. One particular rule stated that both partners
must acknowledge that any object acquired is not common property but
the private possession of the partner whose property was alienated to
acquire it. Anything essential to the common economy of the spouses
may not be sold without consultation and common agreement and, more
generally, each partner may dissolve the disadvantageous contracts
entered into by the other. The partners have greater freedom in the
disposition of their personal private property: they may,
independently of each other, sell or lend it up to the amount of
their honour-price—and here the wife is less free than the husband
for the honour-price of the wife is usually half that of her husband.

The same preoccupations with property recur in the pro visions
regarding divorce. The Irish lawyers (and most of them were clerics)
do not moralise about it but rather set to the task of working out an
equitable division of the assets between the partners. Since each
partner receives back what he/she has contributed in the first
instance, the rules concerning division apply only to profits earned
and acquisitions made while the marriage contract was in force. In
this connection the lawyers hit upon the handy notion of a threefold
division between tír, urgnam, cethra ’and, labour and capital
(livestock)’ and, in the first instance, divided the profits equally
between the spouses in the proportion to which each of them may have
supplied these factors of production. The thirds assigned to land and
capital are distributed regardless of the conduct of the spouses; but
in the case of a divorce in which one partner is innocent and the
other guilty, the labour third falls to the innocent party. In this
sense, labour may mean either the direct labour of the spouse or the
provision of hired labour by meeting the expenses of wages and
maintenance of servants out of his/her own resources.[6] These
principles are, of course, applied to the division of the principal
form of mobile wealth usually possessed by the couple—cattle and
other livestock. And they are applied with certain modifications to
other assets.

In the division of consumables—dairy products, cured meats, corn
and textiles—an additional principle is applied by the lawyers: added
value. Here the best example, perhaps, is that of textiles. The woman
takes half of all clothing and woven cloth, a third of wool ready and
combed for spinning, a sixth of fleeces and sheaves of flax. Textile
production is labour intensive and the value of the product is the
result of the work done rather than the original worth of the raw
materials. The woman’s share on divorce reflects this. Indeed, a
commentator on the tract states that land is not taken into account
in the case of flax and woad because these take up so little ground
and because they require so much labour and are so valuable.[7]

The division of dairy products (no doubt salted butter and cheese)
is quite complicated the labour third is divided in two portions and
the woman (who, of course, has run the dairy) takes one; of the
remainder (i.e. one-sixth of the whole) diminishing fractions go to
the spouse who supplied the dairy vessels (a matter of considerable
importance, for dairy vessels were expensive artifacts produced by
highly skilled craftsmen), the husband, and the spouse who provided
the dairy workers.[8] Similar principles govern the division of corn
in store and cured meat. The legal tracts incidentally provide first
class evidence of the importance of the woman’s role (as manager and
worker) in the rural economy—in dairying, in the production of
woollen and linen garments, in caring for farmyard animals
(especially the fattening of stall-fed beasts for the table) and in
organising the ploughing and reaping of corn (and, no doubt, the
feeding of the labourers).

Lánamnas for ferthinchur ‘marriage on the man’s contribution’,
represents a different kind of property and contractual arrangement
and, in some significant ways, is a different kind of marriage
partnership, particularly since in Irish law much of the standing of
the partners depended on their property relationship. Here the man
provides the bulk of the conjugal property—land, housing and
stock—and the woman provides little or nothing. In this instance, if
the wife is a lawfully betrothed wife but not a cétmuinter (first or
principal wife), contracts made by the husband are valid, whether or
not his wife knows or consents, but he may not alienate food or
clothing, cows or sheep without her consent. What is in question here
is the necessities of life and the means of their continued
production, and to this degree the interests of this kind of wife are
protected. If, however, she is a lawful cétmuinter and a woman of
equal standing and birth, she may impugn all her husband’s foolish
contracts and have them dissolved on her behalf by her sureties (for
which see below).

On the occasion of divorce, such a woman is considerably worse off
than the previous kind of wife. Since she provided neither land nor
stock, she must take a much diminished share of the assets acquired
whilst the marriage lasted: she takes half of her own handiwork and
one-sixth of the dairy produce in store. If she has been a hard
worker (márdéntaid), she takes one-ninth of the cattle dropped whilst
the marriage contract was in force and one-ninth of the corn and
cured meat in store. These portions belong to the ‘labour third’ of
the assets and the implication is that if she were the guilty party,
she received very little indeed on parting. Since, apart from this
labour third, she is practically without means, the lawyers specify
that she is to receive a sack of corn each month from the date of
parting to the next Mayday—the time when new contracts, including
marriage contracts, were made and the assumption is that she should
re-marry as soon as possible.[9]

Lánamnas for bantinchur ‘marriage on the woman’s contribution’,
represents the third type of property arrangement in marriage. In
this case, the woman inherits an estate in default of sons and
marries a man of little or no property. Here there is role reversal:
‘in this case the man goes in the track of the woman and the woman in
the track of the man’. If the man is what the lawyers call ‘a man of
service, a head of counsel who checks the home-folk with advice as
influential as that of his wife’—a man, therefore, who plays an
active role in the management of his wife’s estate—he obtains some
recompense on the occasion of a divorce: he receives a ninth of the
handiwork and of the corn and cured meat in store and one-eighteenth
of the dairy produce. Again, if either of the partners is guilty, the
innocent one takes the ‘labour’ portion. If it is a first or
principal marriage, all the profits which are not to be assigned to
land or capital fall to the innocent party. Apart from that, what
each brought to the marriage, each takes away. If the woman owns all
the property, the standing of the husband in society is estimated in
terms of his wife’s status (enech ‘honour’), unless he is more
venerable, better bred or more honourable than she’.[10]

The three categories of marriage described so far are based on
property; there were others (as we shall see) but it may be useful to
consider these in more detail.

The marriage of the woman of property to a man of less, or in
extreme cases, no property is what occurs in a patrilineal society
such as that of the early Irish—a society in which estates, offices
and ritual roles pass from male to male, ideally from father to
son—when a man has no surviving sons to inherit his property. This
happens in about one in five of all cases (the percentage may be
somewhat lower in polygynous societies, at least among the nobility
who had more access to women) and was not, therefore, a rare
occurrence.[11] The daughter (or daughters, and in this instance the
estate was divided between them)[12] was called a banchomarba ’an
heiress’; she inherited a life-interest in her father’s estate, she
had to get guarantors that she would not alienate it wrongfully and,
on her death, it reverted to her father’s nearest male relatives (to
males within her gelfhine or, in default of these, to males within
her derbfhine). She could not transmit any rights to the estate to
her children. A compromise was however possible: she could marry one
of the ultimate heirs and preserve an interest for her children, and
this appears to be the ancient solution to the problem. This entailed
parallel cousin marriage, that she should marry her first cousin or,
perhaps less frequently, her second cousin—but such endogamous
marriages were forbidden by church law and denounced as incestuous.

The Irish lawyers searched the scriptures and found their answer
in the Old Testament. Jewish law, as preserved in Leviticus, forbade
marriage with the following relatives: sister, mother, mother’s
sister, father’s sister, son’s daughter and daughter’s daughter. This
leaves the way open for parallel cousin marriage but they went
further and cited cases from Old Testament history which proved that
the law of God allowed such marriages. In particular, they cited the
case of the daughters of Salphaad. Their father died without sons and
they demanded an inheritance of land amongst their kin, but the
elders objected on the grounds that they would marry outsiders and
alienate family land. They approached Moses who consulted God who, in
turn, judged their claim to be valid provided they married men of
their own tribe. The record of their marriages preserved in the same
book of the Old Testament shows that they married the sons of their
father’s brothers. Here was explicit biblical justification of
parallel cousin marriage and divine sanction for marriages contracted
with close relatives for reasons of property. The lawyers found
further support in the story of Tobias (who married his father’s
brother’s daughter) for the legal opinion that ‘all the property of a
man who has no son should be given after his death to the husband of
his daughter if he is of the same kindred’.[13]Lánamnas for
bantinchur is not, then, simply an Indo-European custom which finds
its closest comparison in the Greek epikleros and the Indian
putrika ‘appointed daughter’ (as some would argue), but a strategy
of heirship in which the needs of the kindred and the demands of the
church are neatly balanced. It is important to note, too, that this
kind of marriage is not necessarily a first or principal marriage: it
can be a secondary union, and is perhaps a pointer to the possible
independent behaviour—for pleasure or procreation—of propertied women
in early Ireland.

It is likely, of course, that men marrying heiresses amongst their
own kindred possessed some property; but, where there was competition
for land amongst males inheriting a family estate (and such
competition involved status as well as property),[14] it is
reasonable to assume that the usufruct and prospect of possession (at
least as far as his heirs were concerned) acquired by a member of the
family who married an inheriting kinswoman were taken into account in
the division of the paternal estate, and his share diminished
accordingly. This would have given rise to a situation where men were
heavily dependent on their heiress-wives, but the same circumstances
could come about otherwise. A woman could acquire land ar dúthracht,
by outright gift of her father of land which was his personal (as
distinct from) family possession, and women could also possess land
which is called orba cruib 7 shliasta ‘land of hand and thigh’. It
is possible (though quite uncertain) that two kinds of land are in
question here: land acquired by the woman’s own labour and land got
as a marriage portion or for some other sexual service, but the
precise meaning of the term is not clear from the contexts.[15]
Further, it is evident from the canon law that, in certain
circumstances, a father could be obliged to give his daughter an
estate in land amongst her brothers—at least where there was parallel
cousin marriage.[16] And it is perhaps worth remembering that, while
Irish society was strongly patrilineal in ideology, such social
ideologies are usually modified by individual needs and pressures.

The general opinion is that lánamnas comthinchuir was the normal
kind of marriage between persons of property in the seventh and
eighth centuries. But how old was that institution? Caesar’s brief
account of marriage amongst the Gauls appears to refer to two
important characteristics which are present in the Irish type: men
match the herds which their wives bring as dowries by contributing an
equal amount from their own property, and an account is kept of the
profits of these conjoint resources (suggesting that each reserved
ultimate ownership of what was contributed to the marital fund).[17]
If this type of marriage is a common Celtic institution, we may have
here a hint as to the meaning of comthinchor ‘common contribution’
that the wife brought a dowry (dos) in herds and that the husband
matched that dowry with a payment to his wife of an equal amount from
his own resources (donatio ex marito).[18] One need not, of course,
assume that such dowries were always in cattle: we have seen that
women could acquire real estate and other kinds of property and the
glossators, whatever the value of their opinions on this point, note
that land could form part of their marital contribution The equality
of husband and wife is matched elsewhere and scholars have argued
that the Indo-European peoples had always known a variety of marriage
which left the wife her husband’s equal partner—and one could compare
the Roman marriage without manusand the Germanic marriage in which
the husband did not acquire his wife’s mundium.[19]

Whatever about its more remote origins, lánamnas comthinchuir owes
much to late Roman law as interpreted by pope Leo the Great (†461)
and the canonists who followed him. The lawyers specify that the
spouses shall be of equal class and equal legal standing in marriage
(mad comsaír comtéchta a cuma lánamnusa),[20] and, as we have already
seen, the marriage is one which involves a dowry (dos) on the part of
the woman and a donatio propter nuptias on the part of the man. Such
are the conditions set out in the letter of 459 of Leo the Great to
Rusticus, bishop of Narbonne: the spouses must be free-born equals,
the woman must have a dowry, and the marriage must be celebrated
publicly (Nuptiarum autem foedera inter ingenuos sunt legitima et
inter aequales … nisi forte illa mulier, et ingenua facta, et dotata
legitime, et publicis nuptiis honestata uideatur).[21]

The legal background to Leo’s pronouncement is somewhat
complicated. Two complementary prestations were in use amongst the
Romans—a payment by the man and a payment by the wife. The man’s
payment was known as donatio ante (or propter) nuptias and, though
unregulated in Roman law until the third century of the christian
era, it appears to be ancient. In the fifth century, if not earlier,
this contribution on the part of the husband was by custom the exact
equivalent of the woman’s dowry (dos). In Roman society the dowry was
what distinguished legitimate marriage from concubinage, though
legally a dowry was not a necessary condition of legitimacy. However,
in a constitution of 458, the emperor Majorian broke with tradition
and insisted that a dowry was necessary in order to contract a valid
marriage (a law abrogated by Leo and Severus in 463). The letter of
Leo the Great reflects this short-lived state of affairs but it
passed rapidly into the canonical tradition. It appears in the
collection of Dionysius Exiguus towards the end of the fifth century,
in the Hispana in the seventh, and it is cited very fully in the
Hibernensis.[22]Leo’s reference to free-born equals, terms well
rendered by the Irish lawyers, has to do with a rule of Roman law:
slaves could not contract a valid marriage but lived in a de facto
relationship called contubernium, and the church (as does Leo)
followed the practices of secular law as late as the fifth century,
though in this instance the pope goes to some lengths to justify his
opinions by reference to scripture (Gn 31:10; Gal 4:30).[23]

Apocryphal writings of the seventh century, attributed to Jerome
and Augustine, also stress the necessity of a dowry and of public
celebration of the nuptials, and some of these texts appear in the
Irish collection of canons.[24] The principal specifications of Roman
law and canon law are present in lánamnas comthinchuir (we shall see
that the institution called urnaidm met the condition that the
marriage be publicly entered into). We must conclude that this kind
of marriage, far from being traditional, is a highly innovative
product of clerical legal thinking and if, as Thurneysen and Binchy
have argued,[25] it was the most frequent—even the normal—type of
marriage in the seventh and eighth centuries, we must consider the
christian church to have been far more successful in shaping Irish
social institutions than we have hitherto thought.

We can trace church influence on lánamnas for ferthinchur, which
Binchy believes to be ‘the oldest form of regular marriage’. Here the
wife with fullest rights at law is the first (or principal) legal
wife who is equally ‘good’ and of equal birth (bé cétmunterasa
téchta, comaith 7 comceníuil), the very same conditions as those
laid down in the letter of Leo the Great.[26]

The legal act by which the most formal type of marriage is
established is called urnaidm, a term derived from the verb ar-naisc
‘to bind, pledge, engage’. Cohabitation apart, no other legal act was
necessary to establish the marriage though wedding feasts did take
place, as we learn from the saga literature. Urnaidm was a formal
contract: the husband-to-be could act for himself but the woman was
represented by her father or, if her father was dead, by the head of
her kindred, and the conditions of the marriage covenant were
witnessed and their performance guaranteed by various kinds of
sureties. These sureties provided a very important protection to the
woman in marriage for they could act as her agents in suing out her
legal rights; it was they, for example, who dissolved the husband’s
‘foolish’ contracts in lánamnas for ferthinchur.[27] However, it was
possible to conclude marriages in a much less formal way:
‘recognition’ (aititiu) of the relationship by the woman’s family was
quite sufficient to establish a valid marriage.

The contract was further formalized by property exchanges between
the man, the woman’s family, and the woman. These prestations, which
are a normal part of the marriage contract in many early societies,
are somewhat complicated because they change over time. The payment
made by the man is called coibche, a term which first meant
‘contract’, then ‘marriage contract’, and finally the prestation by
which the marriage contract was put into effect.[28] An early maxim
from the gnomic literature states that each father receives his
daughter’s coibche on the occasion of her first marriage—cach athair
a chét-choibche[29]—and that he receives a decling share in the case
of any subsequent marriages. If her father was dead, the head of her
immediate family acted instead: he took half her first coibche and,
like her father, a declining portion of any subsequent payments. The
general principle is that the head of her immediate family is always
entitled to a share in a woman’s marriage payment. This looks as if
the father took all of a woman’s coibche in the case of her first
marriage (and this may have been the early custom), but another early
text states that when a woman is given a coibche secretly in order to
defraud her father the sanction is that the whole payment becomes
his—a view which suggests that from an early period an increasing
portion of the payment fell to the woman herself.

Evidently, she could receive the whole of the coibche as a direct
payment to herself as early as the seventh and eighth centuries, a
development analogous to what happened in the case of similar
payments in the Germanic lands. The term, therefore, ranges over time
from bridewealth to donatio propter nuptias.[30] The amount of the
payment is nowhere defined in the classical law tracts, but the
commentators state that it was equal to half the honour-price of the
woman’s father or one-third that of her grandfather; this provision
makes good sense, for the honour-price of a daughter was half that of
her father and the payment, like that of the ninth-century Saxons,
was the equivalent of the legal status of the woman. This may be what
the lawyers have in mind when they refer to ‘the legal coibche paid
for a first wife of equal family’.[31]

Another term for the payment of the man is tindscra, a term which
also undergoes important changes of meaning. In the very early
period, it may have meant a payment made to the woman’s community
when she married outside it, but by the time of the classical law
tracts it had come to be used interchangeably with coibche. The term
occurs notably in an Old-Irish legend of a marriage arrangement
between the Irish and some Hebrew maidens which purports to explain
why ‘the men always “buy” the women in Ireland for in the rest of the
world the couples “buy” one another’. The text must therefore refer
to the very early period when the bridegroom’s payment was the
principal marital prestation,[32] but the term eventually came to
mean the payment made to the woman and, finally. dowry.

In lánamnas comthinchuir it is clear from the law tracts that
coibche was paid by the man, but it is equally clear that the woman
(or rather her family) matched this payment with a dowry of equal
value. There seems to be no specific term for this dowry payment
other than leith-tinchor, leith-tionól, terms which simply mean ‘the
(equal) contribution of one side’. This may indicate that it was not
an institution inherited from remote antiquity. Dowry has important
implications for marital arrangements in general. As is the case in
lánamnas comthinchuir, there tends to be a premium on the equality of
contribution between the spouses, special attention is paid to the
status of the group the woman marries into and, in the case of
polygyny, wives (and very often their offspring) are ranked as
primary, secondary or concubines in accordance with their assets or
the lack of them.[33]

As we have seen, non-dowry marriage was also common in Ireland in
the seventh and eighth centuries, but it would seem that it was used
to acquire secondary wives, wives of low status and concubines.
Amongst the bad contracts in Irish law is ‘an excessive coibche to a
whore . . . a man who gives a large coibche to a lewd woman
(baitsech) whose absolute property he guarantees it to be’, and the
baitsech is defined as ‘any woman who engages in illicit intercourse
or any woman who abandons her marriage without just cause’. Amongst
the invalid contracts for which pledge and surety are of no avail is
that of ‘land granted as coibche to a woman who does not carry out
her marital obligations’. According to Cáin lánamna, when a man gives
a coibche (even of his own private possessions) to another woman,
whilst he is already married to a first wife who carries out her
marital obligations, that coibche is forfeit and becomes the property
of the first wife—very probably a clerical attempt to control
polygyny.[34] It is evident that some of these women were concubines
induced to cohabit with the man by being paid to do so, and this kind
of concubinary arrangement continued into the later middle ages.[35]

Various sexual unions—permanent, semi-permanent or transitory—are
given a legal status in Irish law and the lawyers attempt to classify
the relationships in different ways. One text divides women into five
classes—three legitimate and two decidedly not so. The legitimate
group consists of a first wife with sons, a first wife without sons
and ‘a woman who is recognised and betrothed by her family’: the
duties and liabilities of all three in respect of their natal kin and
their husband’s family are clearly fixed by law, and the more formal
the marriage the closer they are bound to their husband’s kin. The
other group consists of the ‘woman who is recognised but who is not
betrothed nor ordered (into the relationship by her kin)’ and the
‘woman who has been abducted in defiance of her father or family’:
these women are much less closely bound to their ‘husbands’ and, in
the case of the latter, her natal family takes all her assets and her
partner bears all her liabilities.[36] Elsewhere, the lawyers list
the woman who is induced into a sexual relationship by the man and
the woman who is visited regularly by the man but who is without
common household or property provision. Amongst the lowest of sexual
unions, occupying a position just above rape and copulation with an
unconscious woman, is the marriage of wandering mercenaries.[37] It
is possible that we have here an echo of Roman law—early imperial law
(a rule apparently abrogated by Septimus Severus) forbade soldiers to
marry and soldiering rendered a previous marriage invalid.

Far stricter rules of marriage applied to the mandarin class—the
clerics, judges, poets and other learned persons of high status in
early Irish society—and to church tenants, who had a para-clerical
status. The canon lawyers applied the levitical rule that the
mandarin class should marry only virgins and should strictly avoid
the widow, the divorcée and the whore. They were allowed one wife
only and they could not remarry if that wife died. In regard to the
poet an early law tract states: ‘The ollam proclaims him on the
grounds of his compositions, his guiltlessness and his purity, i.e.
purity of learning, purity of speech … and purity of body, that he
have but one wife, for one perishes from illicit cohabitation, aside
from one chaste woman on lawful nights’. The times at which sexual
intercourse with his wife is forbidden the mandarin are specified in
the canonistic collections: continence was obligatory during Lent,
Advent and the forty days after Pentecost, on Wednesdays, Fridays,
Saturdays and Sundays and on major festivals. Conjugal continence was
also obligatory during pregnancy, that is, from the time the child
first moves in the womb until birth; and after birth a lengthy
purification period, based on, but not exactly reproducing, the
prescriptions of the Old Testament (Lv 12:14), is to be
observed—thirty-six days in the case of a male child, forty-six in
the case of a female.[38] Some of these restrictions on conjugal
sexuality are adumbrated by Augustine and Ambrosiaster but they were
greatly expanded by the authors of the penitentials. It is clear that
an attempt was made to extend some of these stricter rules to the
laity at large—flatha, filidh, feine fobenaither fria coiblighe
giabhair ‘lords, poets, commoners are impaired by illicit
cohabitation’[39]—but evidently without much success.

In general, the rules applied to the laity (or at least the
customs of the laity as reported by the lawyers) were much laxer, and
here divorce and remarriage were allowed. Divorce by mutual consent
was always available as a remedy for an unsatisfactory marriage.
Besides, the grounds for unilateral divorce (with or without
penalties being incurred by the guilty party) are specified in very
considerable detail. A woman could divorce her husband for many
reasons: sterility, impotence, being a churchman (whether in holy
orders or not), blabbing about the marriage bed, calumniation,
wife-beating, repudiation (including taking a secondary wife),
homosexuality, failure of maintenance. A man could divorce his wife
for abortion, infanticide, flagrant infidelity, infertility, and bad
management. Insanity, chronic illness, a wound that was incurable in
the opinion of a judge, leech or lord, retirement into a monastery or
going abroad on pilgrimage were adequate grounds for terminating a
marriage.[40]

Against the background of Late Antiquity and the conflicting rules
of Roman and barbaric law extending to a much later period, and given
the uncertainties of the councils of the fourth and fifth centuries,
the Irish rules concerning divorce are not at all unusual. Late Roman
law regarded marriage as being capable of dissolution by consent (ex
consensu) or unilaterally (repudium). In the latter case, sickness,
insanity, sterility, impotence, and adultery of the wife were all
adequate grounds. Captivity and enslavement allowed the free partner
to remarry: in Irish law, removal (inscuchad) ended cohabitation and
broke the bond. It is interesting to note that the letter of divorce
(libellus repudii) became the most common divorce form under
Theodosius II and Valerian III in the first half of the fifth
century; the Irish canon lawyers cite the Mosaic law in this respect
in some detail (Dt 24:1-4), and may well be doing so to justify an
institution they were familiar with from late Roman law and
custom.[41]

It is worth remembering that the last great work of the principal
patristic theoretician of christian marriage, Augustine (I refer to
De nuptiis et concupiscentia), was published only eleven years before
the first date in Irish church history—AD 431—when Palladius was sent
to an Ireland already christian in part (if not sufficiently
self-confident to be heretical as well). It seems highly likely that
much of the Roman legal framework in matters relating to marriage was
brought into Ireland by missionaries who could not have been familiar
with Augustinian thought on marriage, and they may also have brought
with them the prudent tolerance in regard to divorce and remarriage
which one observes in the decisions of the synods of the fifth
century.[42] On the other hand, the Irish literati of the seventh
century—and perhaps much earlier—were extremely well informed in
regard to patristics and when they came to illustrate their rules of
marriage they were able to draw on a rich library of the church
fathers, stretching from Hermas through Augustine, Jerome, Leo the
Great and Caesarius of Arles to Isidore of Seville.[43] These texts
provide the rigorist theory—the counsels of perfection—but the
practice was more latitudinarian, as it was everywhere.

In continental Europe from the early sixth century marriage became
more and more a matter for the church and its legislation,
legislation which manifested a strong internal dynamic and a marked
tendency towards radical innovation in regard to kindred, marriage
tabus, concubinage, divorce, adoption and inheritance as well as in
the more strictly theological field.[44] Between the end of the ninth
century and the first half of the eleventh the church established its
exclusive competence in regard to the whole of marriage law—the legal
conditions of the contract, the duties of the spouses and the
indissoluble nature of the marriage bond—and its legislation was
collected and refined by the canon lawyers of the eleventh and
twelfth centuries.[45] When the twelfth-century reformers encountered
Irish marital customs they found them outlandish, barbaric and
utterly corrupt. In fact, they were neither the relics of pagan
barbarism nor proof of Irish degeneracy: they were very
old-fashioned, and were to appear even more so –as the Irish clung to
them until the end of the middle ages.

4. The bulk of the legal material dealing with marriage and women is collected in D.A. Binchy (ed), Studies in early Irish law (Dublin 1936) [hereinafter SEIL] . The single most important tract is ‘Cáin lánamna’, edited and translated (with invaluable commentary) in that volume by R. Thurneysen (1–80). For additional important materials see Binchy, ‘Bretha crólige’, 24–33.
Other legal passages in Irish will be referred to by volume and page of CIH.
The Latin legal materials occur in ‘Collectio canonum Hibernensis’ (hereafter referred to as Hib), which dates from the first half of the eighth century but which is largely a compilation of earlier texts. There is a not quite satisfactory edition: Herrmann Wasserschleben (ed), Die irische Kanonensammlung (2nd ed. Leipzig 1885) 180-95. D. Ó Corráin, ‘Irish law and canon law’, Ni Chatháin & Richter, Irland und Europa, 157–66: 163.

11. Jack Goody, Production and reproduction: a comparative study of the domestic domain, Cambridge Studies in Social Anthropology 17 (Cambridge, 1976), 86–98, 133–34; cf. SEIL 183–84, 226–27 (where, however, the suggestion that institution of female heirship served over time to raise the standing of women generally must be treated with caution in view of the statistical frequency of this phenomenon in most patrilineal societies).

31. CIH i 46 = v 1847; on the honour price of the daughter, see Binchy, Críth gablach, lines 124–27; for the Saxon parallel, see Hughes, ‘Bridewealth to dowry’, 267.

32. SEIL 119–21; for the aetiological legend, see Vernam Hull, ‘The Milesian invasion of Ireland’, Z Celt Philol 19 (1933) 155–60 (one wonders whether this is a learned comment on Latin coemptio as compared with Irish tindscra rather than an anthropological observation of other peoples, particularly since the Irish were well aware of Hebrew usage). In a Latin synopsis of the ‘Expulsion of the Déissi’ (Dublin, Trinity College, ms 1298 (olim H.2.7) 78) the tindscra which Óengus paid the Déissi for marriage with their kinswoman (the plain of Femen) is rendered dos in Latin—a usage common in Hiberno-Latin texts (see L. Bieler, Irish penitentials, 56 (Synodus I Patricii, §22), 90 (Penit. Vinniani, §44), 116 (Penit. Cummeani, ii 29), and this became the usual (but not universal) meaning in the West (Lemaire, ‘Origine de la règle’, 418–24).

44. Goody, Development of marriage and the family in Europe, 34–102. The view that the Irish laws ‘provide the most detailed evidence we have of family law in pre-Christian Europe’ (41) is not sustainable.